Judge: Michael P. Linfield, Case: 21STCV35963, Date: 2024-04-16 Tentative Ruling

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Case Number: 21STCV35963    Hearing Date: April 26, 2024    Dept: 34

SUBJECT:        Motion for Attorney’s Fees

Moving Party: Plaintiff Edward Prokop

Resp. Party:    Defendant City of Los Angeles

SUBJECT:        Motion to Tax Costs

Moving Party: Defendant City of Los Angeles

Resp. Party:    Plaintiff Edward Prokop

The Motion for Attorney’s Fees is GRANTED in part. Attorneys’ fees are granted in favor of Plaintiff and against Defendant in the total amount of $473,885.20.

The Motion to Tax is GRANTED in part. Plaintiff’s costs are TAXED by $6,887.55. Costs are AWARDED in favor of Plaintiff and against Defendant in the total amount of $19,608.42.

BACKGROUND:

On September 29, 2021, Plaintiff Edward Prokop filed his Complaint against Defendant City of Los Angeles on causes of action of harassment and discrimination in violation of the Fair Employment and Housing Act (“FEHA”).

On December 20, 2023, by request of Plaintiff, the Clerk’s Office dismissed without prejudice the first cause of action for harassment from the Complaint.

From January 23 to 29, 2024, the Court held a jury trial in this matter. The Jury found in favor of Plaintiff and against Defendant on the sole cause of action for discrimination. The Jury found $700,000.00 in damages.

On February 26, 2024, the Court entered Judgment in this matter.

On March 12, 2024, Plaintiff filed Judicial Council Form MC-010, Memorandum of Costs (Summary).

On March 29, 2024, Defendant filed its Motion to Tax Costs. In support of its Motion to Tax Costs, Defendant concurrently filed: (1) Memorandum of Points and Authorities; (2) Declaration of Christopher C. Cianci; (3) Proposed Order; and (4) Proof of Service.

On April 2, 2024, Plaintiff filed his Motion for Attorney’s Fees. In support of his Motion for Attorney’s Fees, Plaintiff concurrently filed: (1) Compendium of Declaration and Exhibits; and (2) Proposed Order.

On April 15, 2024, Plaintiff filed his Opposition to the Motion to Tax Costs. Plaintiff concurrently filed his Compendium of Evidence in Opposition.

On April 15, 2024, Defendant filed its Opposition to the Motion for Attorney’s Fees. Defendant concurrently filed its Declaration of Christopher C. Cianci in support of its Opposition.

On April 19, 2024, Plaintiff filed his Reply in support of his Motion for Attorney’s Fees. Plaintiff concurrently filed his Compendium of Evidence in support of his Reply.

On April 19, 2024, Defendant filed its Reply in support of its Motion to Tax Costs. Defendant concurrently filed Declaration of Christopher C. Cianci in support of its Reply. 

ANALYSIS:

I.          Motion for Attorney’s Fees

A.      Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Attorneys’ fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).)

B.      Discussion

1.      The Parties’ Arguments

Plaintiff moves the Court to award $480,606.00 in attorney’s fees, which would consist of:

(1)       $334,918.00 in merits lodestar attorney’s fees;

(2)       $8,372.00 in post-trial lodestar attorney’s fees; and

(3)       a multiplier of 1.4 on the total lodestar.

(Reply re: Motion for Attorney’s Fees, p. 14:2–8.)

        Plaintiff argues: (1) that they are entitled to attorney’s fees under FEHA; (2) that attorney’s fees should be calculated using the lodestar method; and (3) that a multiplier is appropriate (and that specifically a multiplier of 1.4 is appropriate, for a variety of factors). (Motion for Attorney’s Fees, pp. 6:6–7, 7:7–8, 11:24, 12:20, 15:16–17, 17:21, 18:8.)

        Defendant requests that the Court deny the Motion for Attorney’s Fees, or in the alternative: (1) reduce lodestar fees by $80,781.00; and (2) deny any multiplier. (Opposition to Motion for Attorney’s Fees, pp. 10:28–11:23.) Defendant agrees that the fee requests should be judged under the lodestar method but argues: (1) that Plaintiff’s Counsel’s hourly rates are unsupported and should be reduced; (2) that Plaintiff’s requested hours are unreasonable; and (3) that Plaintiff’s lodestar multiplier request is improper and unreasonable. (Id. at pp. 3:2, 4:1, 4:27, 9:16.)

        Plaintiff reiterates his arguments in his Reply.

2.      Authority for Fees & Prevailing Party

a.       Legal Standard

“It is an unlawful employment practice . . . [f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).)

“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965, subd. (c)(6).)

The relevant section of FEHA “grants the trial court discretion to award attorney fees to a prevailing party.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 976.) “This statute has been interpreted to mean that in a FEHA action a trial court should ordinarily award attorney fees to a prevailing plaintiff unless special circumstances would render a fee award unjust. (Ibid.)

b.       Discussion

Attorneys’ fees pursuant to FEHA are applicable here. Defendant does not dispute this.

Plaintiff is indisputably the prevailing party here. The Jury found in favor of him and against Defendant on the Plaintiff’s only cause of action.

        The Court exercises its discretion here to award Plaintiffs attorneys’ fees. (Gov. Code, § 12965, subd. (c)(6).)

3.      Method of Calculation

a.       Legal Standard

“An attorney fee award under the FEHA is designed to incentivize and reward a plaintiff's attorney in a civil rights case. Trial courts first determine a lodestar amount: the hours spent times a reasonable hourly rate. Courts may then increase the amount, usually by applying a multiplier to the lodestar. The multiplier is to compensate for extrinsic factors such as the risk of nonpayment (the contingency factor), the public interest advanced by the case, the difficulty of the issues involved, and the skill of the attorneys.” (Caldera v. Dep’t of Corr. & Rehab. (2020) 48 Cal.App.5th 601, 604, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135.)

b.       Discussion

The Parties agree that the lodestar adjustment method is appropriate here, although Defendant argues that a multiplier is not appropriate here.

The Court uses the lodestar adjustment method here and considers whether a multiplier is appropriate. 

4.      Reasonableness of the Attorneys’ Fees Claimed

a.       Legal Standard

“Under the lodestar adjustment methodology, the trial court must initially determine the actual time expended and then ascertain whether under all the circumstances¿of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. Factors to be considered include, but are not limited to, the complexity of the case and procedural demands, the attorney skill exhibited and the results achieved. The prevailing party and fee applicant bears the burden of showing that the fees incurred were reasonably necessary to¿the conduct of the litigation, and were reasonable in amount. It follows that if the prevailing party fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [cleaned up].)

b.       Reasonableness of the Hourly Rates

Plaintiff’s Counsel claim the following hourly rates:

(1)       $1,000.00 per hour for Counsel Gregory W. Smith;

(2)       $700.00 per hour for Counsel Kelley Bond;

(3)       $700.00 per hour for Counsel Diana Wang Wells; and

(4)       $650.00 per hour for Counsel Leila Al Faiz.

(Motion for Attorney’s Fees, p. 11:10–16.)

        The Court has considered the declarations of each member of Plaintiff’s Counsel. The Court determines that the hourly rates requested are all reasonable.

c.       Reasonableness of the Number of Hours

Plaintiff’s Counsel claim that 425.06 hours of work were incurred on the merits of this matter, which is comprised of:

(1)       139.6 hours by Counsel Gregory W. Smith;

(2)       151.8 hours by Counsel Kelley Bond;

(3)       43.58 hours by Counsel Diana Wang Wells; and

(4)       90.08 hours by Counsel Leila Al Faiz.

(Motion for Attorney’s Fees, p. 11:10–16.)

        (The hours spent on the fee motion will be discussed separately infra.)

        The Court considered the same declarations as for the hourly rates. The Court also considered the various invoices submitted in connection with these declarations. The Court further considered what has occurred in this litigation.

        During the first year of this matter (approximately September 2021 through November 2022), the main issue was discovery and the litigation of a Pitchess motion. During the second year of this matter (2023), little occurred that involved the Court.

        From January 23 to 29, 2024, the Court held a jury trial in this matter. The Jury found in favor of Plaintiff and against Defendant on the sole cause of action for discrimination. The Jury found $700,000.00 in damages. The Court then denied Defendant’s motions for judgment notwithstanding the verdict and for new trial.

(Although Plaintiff’s Counsel requests a separate post-trial lodestar that will be considered infra, the Court considered these post-judgment motions here because the separate post-trial lodestar is only for work done after April 2, 2024 [i.e., after the Court ruled on the motions for judgment notwithstanding the verdict and for new trial].)

        Based on all these considerations, it appears to the Court that 425.06 hours is a reasonable amount of time to have spent on this matter.

        Although this issue was not raised in Defendant’s opposition, the Court questions the calculation of hours billed for attorneys Wells and Al Faiz.  Wells stated that she incurred 43.58 hours; Al Faiz stated that she incurred 90.08 hours.  The Court understands billing in tenths of an hour (i.e., 6-minute increments).  However, billing in hundredths of an hour means billing in 36-second increments. The Court simply does not understand how an attorney can account for her time so accurately.  However, as this issue was not raised by Defendants, the Court will not consider it in its award of a lodestar.  (See, e.g., (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)

        The Court therefore awards Plaintiff’s Counsel its requested merits lodestar of $334,918.00.

d.       Lodestar for the Motion for Attorney’s Fees

Plaintiff’s Counsel requests an additional $8,372.00 for the work done since April 2, 2024 (i.e., the lodestar for the Motion for Attorney’s Fees) — as well as a 1.4 multiplier on that amount. (Reply re: Motion for Attorney’s Fees, p. 14:2–8.)

        This is an unreasonable amount of money to request for a relatively simple copy-and-paste motion that Defendant opposed with a copy-and-paste opposition. There was no special skill required for this fee motion. Although the Court understands the importance of an attorney’s fees motion for an attorney working on a FEHA case, an associate could have written this motion.

        The Court will allow $5,000.00 in total fees for the work incurred on the Motion for Attorney’s Fees. The Court does not award a multiplier on this separate lodestar because the motion itself was not taken on a contingent basis; i.e., by the time the attorney’s fees motion was written, Plaintiff already won his trial and attorney’s fees were an all-but-certain outcome. (The multiplier enhancement on the merits lodestar will be discussed infra.)

5.      Multiplier to the Merits Lodestar

a.       Legal Standard

“The purpose of the multiplier is to reward the prevailing attorney with an increased fee in light of the extrinsic Ketchum factors: the importance and difficulty of the litigation; the novelty of the issues involved; the risk of nonpayment for the attorney's services (the contingency factor); the skill of the attorney in presenting the case; and the magnitude of the results obtained.” (Caldera, supra, 48 Cal.App.5th at p. 607, citing Ketchum, supra, 24 Cal.4th at pp. 1132–1134.)

“Of course, the trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case; moreover, the party seeking a fee enhancement bears the burden of proof.” (Ketchum, supra, 24 Cal.4th at p. 1138, emphasis omitted.)

b.       Discussion

Plaintiff’s Counsel requests a multiplier enhancement of 1.4. (Reply re: Motion for Attorney’s Fees, p. 13:2.)

        Defendant argues that no multiplier should be awarded because (1) the hourly rates were already double or triple a reasonable rate; (2) these issues were not novel or complicated; and (3) COVID-19 did not have any effect on this case. (Opposition to Motion for Attorney’s Fees, pp. 9:28–10:26.)

        The Court finds that a multiplier is appropriate in this case.

i.            Time Delay of Litigation

“The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138; accord Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1217–1218 and Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1252.)

In contrast to Defense Counsel, who presumably gets paid monthly, Plaintiff’s Counsel have not been paid for the more than two years that this action has been pending.

        FEHA cases are based on statutes that are designed to protect against discrimination, and there is a significant chance that FEHA plaintiffs will not win their cases. If a plaintiff’s attorney is paid no more than the lodestar for a FEHA case, “competent counsel will be reluctant to accept fee award cases.” (Ketchum, supra, 24 Cal.4th at p. 1133, cleaned up.)

The normal interest rate in California is 10%, which is the equivalent of a 1.10 multiplier. However, not all of an attorney’s work occurs at the beginning of any given year; therefore, giving a multiplier of 1.1 for each year of work would overcompensate Plaintiff’s Counsel. For ease of calculation, the Court assumes that the work was performed more-or-less evenly throughout the course of any given year. This means a 1.05 multiplier per year is appropriate to compensate Plaintiff’s Counsel for the time-value of the money that they would have been paid monthly had the case not been contingent.

        Plaintiff’s Counsel litigated this case from September 2021 to April 2024 without payment. In consideration of this delay and that the statutes under which Plaintiff sued were designed to protect the consumer, the Court awards a 1.15 multiplier to the merits lodestar. This multiplier compensates Plaintiff’s Counsel for the time value of the money they would have been paid monthly had the case not been contingent.

ii.          Substantive Factors

This case involved military-status discrimination by the Los Angeles Police Department against one of its officers. Specifically, Plaintiff submitted evidence to the Jury for the proposition that Plaintiff was differentially treated and demoted based on his concurrent military status. The Jury considered this evidence and found in favor of Plaintiff.

The importance of deterring military-status discrimination by the Los Angeles Police Department cannot be overstated. While it might be surprising, it is not a novel claim. But it did require — and had — highly-skilled attorneys representing Plaintiff.

Plaintiff’s Counsel exhibited a high degree of skill throughout the litigation. Plaintiff’s Counsel did well in obtaining evidence during discovery, which can be particularly difficult considering the privileges of the City of Los Angeles and the Los Angeles Police Department. Plaintiff’s Counsel also did an excellent job in presenting their case to the Jury, prevailing on the sole cause of action tried. Plaintiff’s Counsel also prevailed on the post-judgment motions.

After taking all of this into account, the Court finds that Plaintiff’s Counsel should be awarded a 1.25 multiplier based on the difficulty of the case and the importance of FEHA cases.

Thus, the Court will award the requested 1.4 multiplier.

C.      Conclusion

The Motion for Attorney’s Fees is GRANTED in part. Attorneys’ fees are granted in favor of Plaintiff and against Defendant in the total amount of $473,885.20 as indicated in the spreadsheet below:

II.       Motion to Tax Costs

A.      Legal Standard

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Prevailing parties seeking to claim costs must comply with California Rules of Court, rule 3.1700(a), and parties seeking to contest costs must comply with California Rules of Court, rule 3.1700(b).

The Court separately considers each category of contested costs, including: (1) whether they are specifically allowable or specifically prohibited; (2) whether they were incurred (irrespective of whether or not paid); (3) whether they were reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation; and (4) whether they are reasonable in amount. (Code Civ. Proc., §§ 1033.5, subds. (a), (b), and (c)(1)–(3).

“Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4); see also Foothill-De Anza Cmty. Coll. Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.)

B.      Discussion

1.      The Parties’ Arguments

Plaintiff claims $26,495.97 in costs, which are comprised of:

(1)       $812.81 in filing and motion fees;

(2)       $1,047.34 in jury fees;

(3)       $11,652.13 in deposition costs;

(4)       $473.25 in service costs;

(5)       $550.00 in witness fees;

(6)       $950.00 in court reporter fees;

(7)       $2,917.70 in models, enlargements, and photocopies;

(8)       $567.69 in electronic filing or service fees; and

(9)       $7,525.05 in “other” costs.

(MC-010, p. 1.)

        Defendant moves the Court to tax $11,392.75 in costs, which would comprise of:

(1)       $950.00 in court reporter fees;

(2)       nearly $3,000.00 in models, enlargements, and photocopies;

(3)       $322.14 for medical records obtained during litigation;

(4)       $847.32 for Internal Affairs investigation transcriptions; 

(5)       $138.28 in FedEx charges for delivery of a trial binder; 

(6)       $1,587.50 for equipment and trial technician;

(7)       $1,739.81 for trial transcripts; and

(8)       $2,890.00 for consultant costs.

(Motion to Tax Costs, pp. 3:4, 3:19, 4:10, 5:4, 5:14, 6:5, 6:14, 6:20.)

        Plaintiff withdraws the request for $2,890.00 in consultant costs and is open to withdrawing the request for $1,739.81 in trial transcript costs. (Opposition to Motion to Tax Costs, p. 6:3–6.) Plaintiff opposes the other portions of the motion. (Id. at pp. 3:16, 3:24, 4:15, 4:24, 5:6–7, 5:15.)

2.      Court Reporter Fees

a.       Legal Standard

“Court reporter fees as established by statute” are allowable as costs. (Code Civ. Proc., § 1033.5, subd. (a)(11).)

b.       Discussion

The Court did not order court reporting.

        Plaintiff points to People v. Mooc (2001) 26 Cal.4th 1216 for the proposition that court reporter fees for a Pitchess motion are specifically recoverable.

        The Court has not been presented with sufficient authority for this proposition.

        First, Mooc is inapposite. Mooc (and Pitchess) involved criminal matters. It is not immediately clear based on the Parties’ filings that a Pitchess motion in a civil matter would require recording by a court reporter, much less require that such costs be borne by the losing party. Furthermore, neither Mooc nor Pitchess involved any discussion of who bore the cost of such court recording — again, this was likely because they are inapposite, criminal cases.

        Second, Code of Civil Procedure section 1033.5, subdivision (a)(11) states that “Court reporter fees as established by statute” are allowable as costs. (Emphasis added.) The relevant section of the Code does not state that the judiciary — even the California Supreme Court — can establish new avenues for court reporter fees by common law.

        To the extent the Court does have the discretion to award these costs here, the Court declines to exercise it.

        The Court TAXES the $950.00 in court reporter fees.

3.      Models, Enlargements, and Photocopies

a.       Legal Standard

        “Postage, telephone, and photocopying charges, except for exhibits” are specifically not allowable as costs, except when expressly authorized by law.” (Code Civ. Proc., § 1033.5, subd. (b)(3).)

“Models, the enlargements of exhibits and photocopies of exhibits, and the electronic presentation of exhibits, including costs of rental equipment and electronic formatting, may be allowed if they were reasonably helpful to aid the trier of fact.” (Code Civ. Proc., § 1033.5, subd. (a)(13).

b.       Discussion

        Here, many exhibits were admitted at trial, and Plaintiff’s Counsel chose to use multiple trial exhibits, trial boards, and so on. These various items, including the trial exhibit binders, reasonably aided the Jury.

The Court allows all of the costs claimed for models, enlargements, and photocopies.

4.      Records Obtained During Investigation

a.       Legal Standard

        “The following items are not allowable as costs, except when expressly authorized by law: . . . (2) Investigation expenses in preparing the case for trial.” (Code Civ. Proc., § 1033.5, subd. (b)(2).)

b.       Discussion

Here, Plaintiff admits that the costs associated with the medical records and Internal Affairs interviews came from discovery (in other words, investigation) in preparation for trial. (Opposition to Motion to Tax Costs, pp. 4:15–5:5.)

These items are specifically prohibited from recovery as costs. (Code Civ. Proc., § 1033.5, subd. (b)(2).)

        The Court TAXES the $322.14 in medical records and $847.32 for Internal Affairs investigation transcriptions. 

5.      Delivery Charges

a.       Legal Standard

“An award of costs shall be subject to the following: . . . Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(2).)

b.       Discussion

Plaintiff’s Counsel claims $138.28 in delivery charges because he is 70 years old and preferred to work with hard copies as he prepared for trial. (Plaintiff’s Opposition to Motion to Tax Costs, p. 5:6–14.)

However, without evidence of a disability or something more than just a benefit to Counsel’s ability to prepare the case, the Court is unable to find that this cost was reasonably necessary here.

The Court TAXES the $138.28 in delivery charges.

6.      Equipment Charges and Trial Technician

The equipment charges and trial technician costs are neither specifically allowed or prohibited. Thus, they are within the discretion of the Court.

        Having considered the contingencies Plaintiff’s Counsel was accounting for, the Court considers these costs as having been reasonably incurred for the conduct of the trial. The Court allows them.

7.      Trial Transcripts

a.       Legal Standard

“Transcripts of court proceedings ordered by the court” are specifically allowable costs, while “[t]ranscripts of court proceedings not ordered by the court” are specifically prohibited, except where expressly authorized by law. (Code Civ. Proc., § 1033.5, subds. (a)(9), (b)(5).

b.       Discussion

The Court did not order any transcripts, and Plaintiff has not pointed to any law that specifically authorizes the recovery of these costs in absence of the Court ordering the transcripts. Thus, the transcript costs are not recoverable.

The Court TAXES the $1,739.81 in trial transcript costs.

8.      Consultant Costs

Plaintiff withdraws his request for the consultant costs.

The Court TAXES the $2,890.00 in consultant costs.

C.      Conclusion

The Motion to Tax is GRANTED in part. Plaintiff’s costs are TAXED by $6,887.55. Costs are AWARDED in favor of Plaintiff and against Defendant in the total amount of $19,608.42, as indicated in the spreadsheet below: